Ex parte Acock

California Supreme Court May 3, 1890 No. No. 20620Published

Before: Paterson

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Holding. A judgment of contempt is not void because some charges in the underlying affidavit were based on information and belief, nor does the dismissal of an action shield a party from contempt for acts of deceit or the rescue of property held under court process.

Issues

Whether a contempt judgment is void if based on affidavits containing information and belief.
Whether the dismissal of an action precludes a finding of contempt for acts committed during the pendency of the action.
Whether the facts found by the court constitute contempt under the Code of Civil Procedure.

Disposition. remanded

Quotations verified verbatim against the opinion

“we do not think that, after a full and fair hearing, in which the prisoner has been given full opportunity to present his defense to the charge made against him, a judgment of conviction can be held to be void”

“if the facts stated are true,—and they cannot be assailed here as contrary to the evidence,—the acts of petitioner were contempts within the meaning of section 1209 of the Code of Civil Procedure.”

“The fact that the petitioner may be prosecuted in criminal and civil actions does not prevent a prosecution for contempt.”

Synopsis

Contempt—Judgment of Conviction —Habeas Corpus—Conclusiveness of Facts — Review of Evidence. —The facts stated in a judgment of conviction for contempt of court are conclusive, and the sufficiency of the evidence to support them cannot be reviewed on habeas corpus.

Id.—Affidavits upon Information and-Belief. — After a full and fair hearing, in which the prisoner has been given full opportunity for defense, a judgment of conviction, for contempt cannot be held to be void because some of the charges in the affidavits are made upon information and belief, and the prisoner will not be- released upon habeas corpus on that ground.

Id. ■— Abuse of Process or Proceedings of Court ■— Fraud —■ Preventing Return of Property Replevied —Dismissal. —When the facts stated in a judgment of conviction for contempt show that an action of replevin was commenced in bad faith by the plaintiff for the purpose of using the process of the court to obtain the possession of property from the defendant in an improper manner, without a trial of the right of property, and that after the same had been replevied, its removal from the defendant’s premises, where it was seized and kept, was wrongfully procured from the keeper without the sheriff’s consent, for the purpose of preventing its return under an undertaking tendered therefor, and that the action was thereupon dismissed, and the property delivered by the sheriff to the plaintiff, under the false representation of plaintiff that the action had been compromised, such facts must be accepted as true upon habeas corpus, and the acts so stated are punishable contempts, within the meaning of section 1209 of the Code of Civil Procedure, making deceits or abuse of the process or proceedings of the court by the parties to an action or-special proceeding, or rescuing any property in the custody of an officer by virtue of an order or process of court, contempts of the authority of the court; and the plaintiff could not shield himself from the legpl consequences of his acts by a dismissal of the action.

Id. — Liability to Civil on Criminal Action. — The fact that the party-accused of contempt may be prosecuted in a civil or criminal action for the act complained of does not prevent a prosecution for contempt.

Paterson, J. The petitioner was adjudged guilty of contempt by the superior court of Sacramento County, and seeks to be discharged from custody by this proceeding, on the ground that the commitment and judgment are void. The commitment is a certified copy of the judgment. The recitals in the judgment show that on the twenty-second day of August, 1869, an action of claim and delivery was commenced by the petitioner against Salome E. Acock and Nellie T. Halsey for the recovery of some wheat and barley then in the possession of one W. K. Lindsay, as the agent of the defendants in said action; that a proper affidavit and undertaking on claim and delivery were made by the plaintiff in said action, and an order was indorsed upon said affidavit, directed to the sheriff, requiring him to take said property from the possession of the defendants; that, in pursuance of said order, said property was taken by the sheriff into his possession and held by him until the fourth day of September, 1889; that on August 30th, seven days after the service of the summons and other papers in said action upon defendant Halsey, the defendants therein executed and delivered to the sheriff an undertaking, which was afterward approved by the judge of said superior court, for the delivery of said property to him; that this undertaking was approved, after a regular justification of the sureties, on the third day of September, 1889, and was caused to be filed by the judge on that day; that “ thereupon said Acock wrongfully, and for the purpose of preventing the return of [53]said property to said defendants, did procure said Ed. Treganza, the keeper of said property, to remove the same from the land of one W. K. Lindsay, where the same had been seized by the sheriff and was being kept, onto the land of said Acock, which removal was without the knowledge or consent of said sheriff; that immediately after the removal of said property, to wit, on the fourth day of September, 1889, the attorneys of said Acock, at his instance, and in his presence, and with the intent and purpose on the part of said Acock of preventing said return of said property, did dismiss said-action while the said property was in the hands of said sheriff, as aforesaid, and thereupon the said Acock did, immediately after said dismissal, and on the same day, go to the place where said property was situated, and while the sanie was still in the possession and under the control of the sheriff of said county of Sacramento, and was by him held as an officer of this court and under the process of this court, did then and there falsely represent to said keeper that said case had been settled, and thereupon, in disrespect of this court and its process, the said Acock did unlawfully and forcibly take the said property info his possession, without the previous consent or knowledge of the sheriff of said county of Sacramento, did provide himself with wagons, and did load the said property so held by the said sheriff upon said wagons, and did haul away, sell, and convert the same to his own use, all of which was done without the knowledge or consent of the defendants in the said action, and with the intent to evade the process of said court, and to prevent the said defendants from getting possession of said property from said sheriff, in pursuance of their said bond for a redelivery thereof; that it appears to the court, from the evidence in said cause, and the court finds, that the said action was not commenced or prosecuted in good faith, but was commenced and prosecuted with the intent and purpose on the part of said Acock of using said court

Ex parte Acock

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